On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-6270-01 and L-1100-02.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically February 3, 2006
Before Judges Coburn, Collester and S.L. Reisner.
In this case, we are called upon to decided whether a tenant's complaints about her landlord, when made to the concierge of her apartment building, can form the basis for a defamation claim by the landlord. We hold that they cannot.
The more precise questions posed are (a) whether making the statements to the landlord's employee constituted publication to a third party for purposes of a defamation claim, (b) whether this State's public policy to protect residential tenants precludes a landlord from suing a tenant in defamation for complaints made to the landlord's agent about the landlord, and (c) whether the tenant's statements are actionable if the landlord's agent does not believe them.
This case arises from a series of bitter disputes between a tenant, Eleanor Capograsso, and Lefrak Organization, Inc., which was responsible for constructing the apartment complex in which she lived and which was the parent of the corporation that operated the building. We briefly review the procedural history.
Plaintiffs, 30 River Court East Urban Renewal Company and its corporate parent, Lefrak Organization, Inc., sued defendant, Eleanor Capograsso, for defamation; she counterclaimed, asserting that the lawsuit was filed in retaliation for her activities with a tenant organization. She also filed a separate complaint against Lefrak, 30 River Court East, and several municipal, State and Federal entities. The gist of her complaint was that Lefrak had permitted her and other tenants to move into an apartment building before construction was finished, thus subjecting them to safety hazards and severe inconvenience. The two cases were consolidated. After defendant violated discovery orders, her answer was suppressed and her complaint and counterclaims were dismissed. The trial court held a proof hearing limited to plaintiffs' defamation claim.
Defendant's notice of appeal indicated that she was appealing from two April 30, 2004 trial court orders which addressed only the trial court's decision in favor of plaintiffs on their defamation claim. Defendant's affirmative claims against the plaintiffs and against State and municipal defendants were dismissed by the terms of earlier orders that were not included in her notice of appeal. Therefore those orders are not within the scope of her appeal, and we will not address them. See R. 2:5-1(f)(3)(i); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 460-62 (App. Div.), certif. denied, 174 N.J. 544 (2002).
These are the pertinent facts. Defendant, Eleanor Capograsso, was a tenant in the Presidential Plaza Towers complex, which is owned by a subsidiary of the Lefrak Organization. She lived in the 30 River Court East Tower building. According to Angel Class, the concierge at 30 River Court East Tower, on March 11, 2001, defendant called the front desk numerous times with assorted complaints. Her first complaint, at 8:15 a.m., concerned an allegation that the snow had not been properly removed from "the ring road and the sidewalks [around the complex]." Class testified that defendant made approximately 20 phone calls to the front desk within a matter of an hour. . .
In those conversations she was just ranting.
Then she went on to say that . . . she knew that Lefrak had hired some goons to drive her off the West Side Highway. . . Then she went on to say, I'm aware that the Lefrak Organization has been going through my mail.
I'd try to explain to her that no one has access to the mail room but the Postal Service. And she went on . . . a [tirade] stating that she knew that the Lefraks had access to that room.
Class testified that defendant also told him he was unfit to have his job, and that the apartment staff were "a bunch of low lives [sic]" who did not know what they were doing. After trying to respond to her concerns, Class finally hung up on her. He then reported his conversations with defendant to his supervisor and made an entry in the log book. He testified that
[a]nything and everything is logged in that book, whether it's a food delivery, a car service picking up a tenant, a conversation with a tenant that we deem or the ...